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2010 DIGILAW 3213 (ALL)

Manorma Devi v. State of U. P. & Others

2010-10-19

SUDHIR AGARWAL

body2010
Sudhir Agarwal, J.:- 1. Heard Shri Ved Byas Mishra, learned counsel for the petitioner, Shri R.P. Srivastava, learned counsel for the respondent no.4 and learned Standing Counsel for the respondents 2. It appears that advertisement for appointment to the post of ''Shiksha Mitra' was made in the year 2006 at Primary School, Village Kalwari, Block Bahadurpur, District Basti. Pursuant to the said advertisement petitioner submitted his application form along with requisite papers but her form has been rejected on the ground that neither she has submitted certificate of residence nor the experience certificate. This court on 27.9.2010 passed the following order:- " Submission is that petitioner's representation against here non-appointment on the post of Shiksha Mitra was rejected on the ground that petitioner did not annex domicile certificate and experience certificate along with her application form but Annexure-3 of the writ petition shows that both these certificates were appended by the petitioner along with the application said to be submitted on 9th February 2006. Learned Standing Counsel in the circumstances is directed to produce the relevant record of the aforesaid selection. List this matter on 19.10.2010 on which date the aforesaid record shall be produced." 3. Pursuant to the aforesaid order, today learned Standing Counsel has produced the application form of the petitioner said to have been submitted in the year 2006. It is stated that petitioner had submitted two sets of application forms. In one of which of her name was mentioned as Smt. Manorma Devi W/O Shri Awadh Narain R/O village Jasaipur, Post Pokhraj, District Basti and in another her name was mentioned as Smt. Manorma Shukla W/O Shri Awadh Narain R/O village Jasaipur, Post Pokhraj, District Basti. 4. The application form of the petitioner admittedly has been rejected on the ground that two documents were not submitted by the petitioner though this Court has found that both the documents are appended. It is therefore, evident that her application form was rejected by the respondents illegally, arbitrary and shows that it must have been done to give appointment to someone else i.e. in this case respondent no.4. 5. Learned counsel for the respondent no.4 however, placed on record the judgment of Division Bench in Sanjay Kumar Singh Vs. It is therefore, evident that her application form was rejected by the respondents illegally, arbitrary and shows that it must have been done to give appointment to someone else i.e. in this case respondent no.4. 5. Learned counsel for the respondent no.4 however, placed on record the judgment of Division Bench in Sanjay Kumar Singh Vs. State of U.P. & Others reported in 2008(3) E.S.C. Page 1749 D.B. to submit that earlier selection for the year 2006-07 is already over and the process for selection for fresh recruitment have already been initiated, therefore, this writ petition has rendered infructuous and petitioner has no right to claim her appointment on the post of ''Shiksha Mitra. This judgment has no application to the present dispute. This court is not concerned to consider as to whether the petitioner is entitled to get appointment or renewal after expiry of the aforesaid session or not. The question is whether her right to be considered for appointment on the post of ''Shiksha Mitra' was validly denied or not. Once the court is satisfied that the petitioner was denied right of consideration for appointment to the post of ''Shiksha Mitra" on some flimsy ground or arbitrarily showing malice on the part of respondent, this court is not powerless to pass the order to do justice to the petitioner. 6. Malice in law is quite a distinct factor to malice in fact. The power which is said to have been exercised on account of mala fide may be vitiated on account of either malice in fact or malice in law. In Shearer Vs. Shields, (1914) AC 808 at Page 813 Viscount Haldane described "malice in law" as under :- "A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently." 7. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently." 7. Again in Pilling v. Abergele Urban District Council ( 1950) 1 KB 636 Lord Goddard, CJ said that where a duty to determine a question is conferred on an authority which state their reasons for the decision, and the reasons which they state show that they have taken into account matters which they ought not to have taken into account or that they have failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter. 8. Lord Esher M.R. in The Queen on the Prosecution of Richard Westbrook vs. The Vestry of St. Pancras, (1890) 24 QBD 371 at page 375 said : "If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion." 9. Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause. 10. The Apex Court has summarised "malice in law " in (Smt.) S.R.Venkatraman Vs. Union of India and another, AIR 1979, SC 49 as under : "It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another." (Para 8) 11. The Apex Court further in para 9 of the judgment in S.R.Venkatraman (supra) observed: " 9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. The Apex Court further in para 9 of the judgment in S.R.Venkatraman (supra) observed: " 9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the ''public interest', to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power." 12. In Mukesh Kumar Agrawal Vs. State of U.P. and others JT 2009 (13) SC 643 the Apex Court said : " We also intend to emphasize that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction while exercising its jurisdiction, malice of fact must be pleaded and proved." 13. In Somesh Tiwari Vs. Union of India and others 2009 (2) SCC 592 dealing with the question of validity of an order of transfer on the ground of malice in law, the Apex Court in para 16 of the judgment observed as under: "16.. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases, where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds--one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal." 14. In HMT Ltd. and another Vs. Mudappa and others JT 2007(3) SC 112 the Apex Court in paras 18 and 19 defined malice in law by referring to "Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989" as under: "The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means ''something done without lawful excuse'. In other words, ''it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others." "19. It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or personal ill-will or spite on the part of the State. It could only be malice in law, i.e legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide." 16. In the present case the application of the petitioner has been rejected on certain grounds which are non est though the application was complete having all the requisite documents appended thereto. The concerned authority has deprived the petitioner's right to be considered for appointment on the ground that two documents were not appended though the said fact has not found to be correct after perusing the original record. That being so, it is evident that the power exercised by the respondents is not bonafide, but is actuated for some collateral purpose. It is covered by the term "malice in law" as discussed above. 17. That being so, it is evident that the power exercised by the respondents is not bonafide, but is actuated for some collateral purpose. It is covered by the term "malice in law" as discussed above. 17. In brief the malice in law can be said when a power is exercised for an unauthorized purpose or on a fact which is claimed to exist but in fact, is non-est or for the purpose for which it is not meant though apparently it is shown that the same is being exercised for the purpose the power is supposed to be exercised. ( See Manager Govt. Branch Press and another Vs. D.B.Belliappa AIR 1979 SC 429 ; Punjab Electricity Board Vs. Zora Singh and others AIR 2006 SC 182; K.K.Bhalla Vs. State of U.P. and others AIR 2006 SC 898 ; P. Mohanan Pillai Vs. State of Kerala and others (2007) 9 SCC 497 ; M.P.State Corporation Diary Federation Ltd. and another Vs. Rajneesh Kumar Zamindar and others (2009) 6 SCALE 17; Swarn Singh Chand Vs. Punjab State Electricity Board and others (2009) 7 SCALE 622 and Sri Yemeni Raja Ram Chandar Vs. State of Andhra Pradesh and others JT (2009) 12 SC 198. 16. In view of above, the impugned order dated 9.6.2008, anneuxre-1 to the petition, passed by the respondent no.2 is hereby quashed. However, since the petitioner cannot be granted appointment on the post of ''Shiksha Mitra' since almost three years have already passed, I find it would be appropriate to permit the respondents to make further selection in accordance with law afresh. The petitioner shall also be entitled to cost which is quantified to Rs. costs of Rs. 50,000/- against the respondents nos. 2,3 and 5. It is however, made clear that the amount as directed above at the first instance though shall be paid by the respondent no.1 but the respondent no.1 shall be at liberty to recover the aforesaid amount of costs from the official concerned who are found guilty after holding inquiry in accordance with law . 17. With the aforesaid observation/direction the writ petition is accordingly disposed of.